[2022] KEHC 16123 (KLR)

Njeru v Agricultural Finance Corporation (Civil Case 31 of 2003) [2022] KEHC 16123 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16123 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Case 31 of 2003

LM Njuguna, J

December 7, 2022

Between

Henry Njeru

Plaintiff

and

Agricultural Finance Corporation

Defendant

(Formerly Nairobi HCC NO. 2993 OF 1979)

Ruling

1. The application for determination before the court is dated April 6, 2022 wherein the applicant seeks for orders that :i.The managing Director of Agriculture Finance Corporation do appear personally in court to show cause why he/she should not be committed to civil jail for contempt of court orders.ii.Costs of the application.

2. The application is premised on the grounds on its face and further supported by the affidavit of the applicant.

3. The plaintiff/applicant’s case is hinged on the fact that the Honourable Court ordered the defendant/respondent to release to the plaintiff/applicant the title deed for LR Gaturi/Nembure/ 1934 which it has been holding despite the decree in the suit dated June 21, 2007. That the order by the court dated July 7, 2021 was served on the defendant/respondent but the same has not been honoured. That as a result, the applicant has immensely suffered in the hands of the respondent/defendant since 1979 when the suit was first filed.

4. The defendant/respondent vide a replying affidavit sworn on June 20, 2022 deposed that sometime on or about 16. 08. 1979, it exercised its statutory power of sale over the suit property LR Gaturi/Nembure/1934 and one Angelo Njeru was declared the highest bidder. That consequently, on or about July 16, 1987, the defendant/respondent prepared transfer documents together with the title of the suit property and forwarded them to the purchaser, Angelo Njeru. That this matter has been subject of litigation vide Embu High Court Civil Suit Number 31 of 2003 which case was determined in 2007 approximately 20 years after the defendant/respondent had forwarded the transfer forms and title deed to the said Angelo Njeru, the purchaser. It was its case that sometime on or about July 28, 2021 the plaintiff/applicant obtained an order directing that the defendant/respondent releases to the plaintiff the title deed for the whole of that parcel of land known as LR Gaturi/Nembure/ 1934. That in light of the above, it is only fair and equitable that the application dated April 6, 2022 be dismissed due to the foregoing reasons and further, the same does not warrant the orders sought herein.

5. The plaintiff/applicant made a further affidavit wherein he deposed that, the suit was filed in the High Court at Nairobi as HCCC No 2993 of 1979 and that on September 14, 1979, the court issued a restraining order against the defendant/respondent from completing the sale of the title number LR Gaturi/Nembure/1934 and further stopped the transfer of the said land. That the case was later transferred to Embu and registered as HCCC No 31 of 2003 and that on June 21, 2007, the court found that the purported sale of the land was null and void. That the defendant/respondent did not appeal the said judgment. It was deposed that the defendant/respondent ought to have reversed the alleged sale at its own expense given that court orders cannot be made in vain.

6. The court gave directions that the application be canvassed by way of written submissions but only the plaintiff/applicant complied with the directions.

7. The plaintiff/applicant submitted that the defendant /respondent has continually ignored the orders of this court and therefore, he should appear before the court to show cause why he should not be committed to civil jail. That the defendant/respondent’s conduct has been reckless and remain unbowed even after the plaintiff/applicant filed an application in the year 2021 to have the said title deed returned. Reliance was placed on the case of Carey v Laiken 2015 SCC17. As to whether the order to surrender the title was clear, it was submitted that the same was clear, plain and unequivocal and it could not be misunderstood. As to whether the party alleged to have breached the order had actual knowledge, there is clear evidence that not only was the order served on the respondent’s advocate but also on the managing director of the respondent. In regards to whether the breach of the court order was deliberate and intentional, it was the plaintiff/applicant’s view that based on the reply by the defendant/respondent, nothing would have stopped it from filing before this court an explanation why it could not execute and/or implement the court’s orders. Reliance was placed on the case of Muthika v Baharini Farm Limited, Court of Appeal Civil Application No Nai 24 of 1985. This court was therefore urged to exercise its discretion and apart from committing the respondent to civil jail to also direct that the defendant/respondent transfer the title to the plaintiff/applicant.

8. I have considered the application herein, the responses thereto, and the written submissions by the plaintiff/applicant and I find that the sole issue for determination in this application is whether the orders sought herein should issue.

9. The Contempt of Court Act is, however, no longer operational as from the date of the judgment declaring it unconstitutional in Kenya Human Rights Commission v Attorney General & Another(supra). I am therefore obliged to revert to the provisions of the law that operated before the enactment of the Contempt of Court Act to avoid a lacuna in the enforcement of Court orders. It was in this respect observed in Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya HCMCA No 13 of 2008, that the High Court has the responsibility for the maintenance of the rule of law and hence there cannot be a gap in the application of the of law.

10. The Court of Appeal in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others, [2014] eKLR found that the English law on committal for contempt of court under Rule 81. 4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”

11. In the instant case, there is an order pursuant to the ruling delivered by this court on July 7, 2021 in favour of the applicant in which the court ordered as follows that: –i.Spent.ii.The defendant/Agricultural Finance Corporation be and is hereby ordered to release to the plaintiff the title deed for LR GATURI/NEMBURE/1934 that it has been holding despite the decree in the suit.iii.Costs of the application are awarded to the applicant.

12. Mativo J restated the test for establishing contempt in his decision inSamuel MN Mweru & Others v National Land Commission & 2 others [2020] eKLR where he stated –It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove -(i)The terms of the order,(ii)Knowledge of these terms by the Respondent,(iii)Failure by the Respondent to comply with the terms of the order.

13. Upon proof of these requirements, the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities.

14. In this case, the court orders were outright and unambiguous. I will proceed to determine whether the respondents were aware of the material order and secondly, whether they acted in disobedience of the order without justifiable cause.

15. Unless the court dispenses with service, a judgment or order may not be enforced by way of an order for contempt unless a copy of it has been served on the person required to do or not do the act in question. Rule 81. 6 of the English Civil Procedure Rules specifically provides that the method of service shall be personal service, which is effected by leaving the order with the person to be served.

16. It is also the position, and it has been held in several judicial decisions that if personal awareness of the court orders by the alleged contemnors is demonstrated, they will be found culpable of contempt even though they had not been personally served with the orders and penal notice. See Court of Appeal decision in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR where it was held that –“Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings" We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.”

17. Again, inBasil Criticos v Attorney General and 8 Others [2012] eKLR Lenaola J (as he then was) pronounced himself as follows: -“.....the law has changed and as it stands today knowledge supersedes personal service ..... where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary.”

18. Upon analysis of the evidence herein, I do note that service of the order was effected by the learned counsel of the applicant upon the respondents and further from the court record, the learned counsel for the respondent in his replying affidavit sworn on June 20, 2022 deposed that he is aware of the said orders but instead reiterated that the said title was released to the purchaser over three decades ago and thus, the same had already been overtaken by events. It therefore translates to the fact that there is clear evidence that the respondent was not only duly served with the necessary order but was also aware of the same; which was a command it was expected to heed in promoting constitutional values and the rule of law besides upholding the dignity and authority of the Court.

19. As regards culpability, the act or omission constituting disobedience of an order may be intentional, reckless, careless, or quite accidental and totally unavoidable. An intentional act may be done with or without an intention to disobey the order, and with or without an intention to defy the court. The element of flagrant defiance of the authority of the court, is no longer necessary to establish breach of a court order. It is now established that the mental element for liability for contempt arising out of disobedience is simply that the disobeying party either intended to disobey or made no reasonable attempt to comply with the order. See in this respect the English House of Lords decision in Heatons Transport (St Helens) Ltd v Transport and General Workers Union (1973) AC 15.

20. In addition, in the case of Mwangi HC Wangondu v Nairobi City Commission, Nairobi Civil Appeal No 95 of 1998 that the threshold of proof required in contempt of Court is higher than that in normal civil cases, and one can only be committed to civil jail or otherwise penalized based on evidence that leaves no doubt as to the contemnor’s culpability.

21. The Court also observed that the defendant/respondents’ inaction and neglect in that regard was a deliberate disregard of a valid court order which grossly undermined the dignity of this Court. This I say for the reason that the defendant/respondent recognized that there was an order directing it to release to the plaintiff/applicant the title deed to LR GATURI/NEMBURE/ 1934.

22. It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of courts is upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void. [SeeEconet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828, Ibrahim, J (as he then was).

23. However, this court having perused the record herein, the question that it asks itself is whether the orders sought thereto can be granted having in mind that the same derive their validity from a judgment delivered by this court on June 21, 2007. I say so for the reason that in reference to the ruling delivered by this court dated July 7, 2021, the application proceededexparte, this court was not privy to the depositions by the defendant/respondent as enunciated in its replying affidavit sworn on June 20, 2022.

24. In reference to the orders sought herein, this court holds the view that though the defendant/respondent is in contempt of the court orders, in the same breadth, it takes cognizance of the fact that the application herein has been brought too late in the day. It remains unclear why the plaintiff/applicant chose to sit on the orders of the court, the same having been issued over thirteen years ago. In my view, the doctrine of laches having caught up with the applicant in that respect.

25. As a consequence of the above, I reach a determination that:i.The application dated April 6, 2022 is hereby struck out.ii.Each party to bear its own costs.

26. It is so ordered.

Delivered, dated andsigned atEmbu this7th day ofDecember, 2022. L. NJUGUNAJUDGE…………………………………….………for the Plaintiff…………………………………….…..for the Defendant